Settlement Brochures in The Traumatic Brain Injury Case

Settlement Brochures in The Traumatic Brain Injury Case

My topic for today is a subject that is almost taboo at a convention of trial lawyers. As you attend the various convention functions this week you will hear some of the best trial lawyers in this country glorifying their courtroom prowess and telling tales of their courtroom adventures. Trials provide the basis for great stories. You will hear very few of those attorneys telling tales of their great settlements. Unfortunately, settlements rarely make for good stories. There is no doubt that there are many cases that simply must be tried in order to obtain fair compensation for the client. Cases with mild TBI, involving little or no LOC and no objective sign of injury are extremely difficult to settle. There is no doubt that the best way to settle a case is to prepare for trial and to have a proven record of success in the courtroom. But with the advent of mandatory ADR and other changes in the court system designed to promote early settlement of cases, the time has come for even the best trial lawyers to hone their settlement skills.

One of our tasks when we represent a person with ABI is to help them meet their goals. If you asked the client what their goals are in the case most clients would give you two answers: I want what the law says I am entitled to and I want my case settled as soon as possible. There are very few ABI clients who will answer that question by saying what they really want is a trial by jury. How many of you have represented someone who told you: "I don't want to go to court. I want my case settled as soon as possible. I am afraid of going to court" A good settlement is almost always better than a large verdict. Why? Settlement eliminates all of the stress, uncertainty and cost associated with litigation. A reasonable settlement provides immediate financial resources for the client's day-to-day expenses, medical care and rehabilitation. In addition, the attorney and client retain some control over the outcome of the case as long as settlement negotiations are continuing.

When we represent a person with ABI we are their advocate. We are familiar with our role as advocates in the legal system. We should also be advocates for rehabilitation and for recovery. I want my clients to recover as much of their post injury potential as is possible. One of the greatest challenges I face when representing a person with mild TBI is obtaining adequate rehabilitation services. The studies show that early intervention and rehabilitation leads to better outcome. Many times these services cannot be obtained until the case is resolved. Thus, I believe the earlier the case is resolved, the better the long term prognosis for my clients. I share my clients goal in resolving the case as soon as possible.

This next concept is a little difficult to accept. But I have been assured by many people in the insurance industry that it is true. As a general rule, the Defendant and insurance carrier(s) would prefer to settle the case also. As with any rule, there are exceptions. In my area, the exceptions are known as Allstate and Nationwide. Most insurance carriers also want to avoid the uncertainties and expense of litigation and want to resolve the case as soon as psooible. Everyone benefits from a reasonable settlement of the claim. Thus, it is important to maximize each opportunity for settlement as a case progresses.

There are four primary goals to keep in mind when creating a settlement brochure in a traumatic brain injury case. First, to present the Plaintiff's case in the best possible light and maximize the potential recovery. Second, to provide the Defendant or insurance carrier with the information they need to justify the payment that the Plaintiff believes is appropriate. Too often, Plaintiff's attorneys concentrate all of their efforts on the first goal and ignore the second consideration altogether. Providing the information necessary to present the strengths of the Plaintiff's case does not necessarily provide the Defendant with the information it needs to evaluate the claim or the information an adjuster needs to document their file. The authority of every claims adjuster is limited in some way. At some point the adjuster will have to explain why they handled the claim as they did. They must be able to justify whatever payment they make to the Plaintiff. This is particularly true for independent adjusters.

In evaluating a brain injury claim, the Defendant must not only consider the strength of the Plaintiff's evidence, it must also be able to evaluate any defenses that may be available. Therefore, it is important to provide enough information about the Plaintiff to enable the Defendant to fully evaluate the claim. For example, in mild to moderate brain injury cases involving brief or no loss of consciousness, claims adjusters and defense attorneys are being taught to carefully review all of the Plaintiff's past medical records in order to look for symptoms of post-concussive syndrome that were present before the injury. They are also learning to look for other psycho-social stressors that may account for a decline in functioning or impaired work performance. The carrier will not offer a significant sum in settlement of such a claim until they have satisfied themselves that there is no alternative explanation for the Plaintiff's symptoms. Therefore, it is a good idea to include past medical records, employment records, etc. in the settlement brochure even if they are not necessary to prove the Plaintiff's damages.

The third purpose of a settlement brochure is to educate the adjuster about the nature and effect of traumatic brain injury. TBI has often been called the "silent epidemic" because there is a great deal of misunderstanding about how traumatic brain injury occurs and its long term effects. Although claims involving TBI are becoming more common, there are still very few adjusters who are knowledgeable in this area. For example, I recently received a letter from an adjuster in a case involving mild TBI which stated, "I do not understand how your client could have a brain injury when they did not hit their head in the wreck and did not complain of head injury in the emergency room." Obviously, it will be difficult to resolve any brain injury claim with this adjuster until they have a better understanding of the biomechanics of traumatic brain injury!

The fourth goal is to demonstrate to the Defendant or carrier that the Plaintiff's attorney has the ability, knowledge and competence to properly try a brain injury case before a jury. It is well known that one factor insurance carriers consider when evaluating a claim is the track record of Plaintiff's counsel in other similar cases. The carrier will be evaluating the Plaintiff's attorney at the same time they evaluate the case. The settlement brochure is often the first opportunity the carrier will have to evaluate the performance and skill of the Plaintiff's attorney.

Don't think of settlement brochures as something to be done before the case is submitted only to be abandoned if the case does not settle before litigation is instituted. Obviously, the manner in which the claim is initially submitted is extremely important. First impressions are lasting impressions. But there are many other opportunities to use settlement brochures even after a lawsuit is filed. In my jurisdiction every case filed in state court is required to go through mandatory ADR before it can be placed on a trial docket. With a few minor changes, our settlement brochures make terrific mediation or arbitration submissions. They also form a solid foundation to build a trial notebook.

We have adopted a case manager system in my office. Each case is assigned to a paralegal we call the case manager. That person is responsible for the case from beginning to end. The case managers are required to begin work on the settlement brochure as soon s the file is set up. It is an excellent way to identify problem areas in a case that need additional attention early in the case.

III. Types

There are three general types of settlement brochures. The type of brochure used in any particular case depends on several factors. The most common method of presenting a claim is through the use of a written brochure. This has been the traditional method of presenting claims to insurance carriers. Many attorney's prefer a "demand letter" format summarizing the case in a letter to the insurance adjuster. I prefer a memo style in which the facts of the case, the law and damages are summarized in detail.

The second type is the video brochure. Video settlement brochures began as an extension of traditional "day in the life" films. Attorneys began to add case and demand summaries to the day in the life film after seeing the tremendous impact that a day in the life film can have in a serious injury case. Gradually these extended day in the life films evolved into video brochures. Now it is not uncommon for a case to be presented in a video format even when day in the life segments are not included.

A third type of settlement brochure is now emerging as technology and computers continue to improve at a rapid pace. A multimedia brochure settlement brochure includes text, digital images, video clips and sound. They offer several advantages over other forms: first, all of the information about a case can be presented in one, compact package that can easily be reproduced or edited. Second, unlike video brochures, a multimedia brochure allows the claims representative to review the material at their own pace and to concentrate on the areas which they are most interested in. Third, it preserves the visual impact of video brochures while offering more information and more flexibility in how the information is structured. The disadvantage of multimedia is that there are still many people who are uncomfortable with computers and thus may have difficulty fully accessing the information. It is also important to make sure that the carrier has the software and hardware necessary to view the completed brochure. Software compatibility is becoming less of a problem as more and more programs have the ability to view documents prepared in other formats.

The format best suited for any particular case depends on several factors. Cost will be the primary factor in many cases. A comprehensive video settlement brochure can easily cost $8-10,000 to produce. If the available insurance coverage or the litigation budget is limited, video may not be a viable option.

Some types of injuries are better suited for video than others. If the Plaintiff has visible injuries or if their injuries have left them with obvious impairments a video brochure should strongly be considered. Conversely, if the Plaintiff's injuries are not readily apparent, a video brochure that only includes a brief interview with the Plaintiff may not give a true indication of their impairments in a mild brain injury case. Therefore, care must be taken to ensure that the finished product accurately portrays the Plaintiff's current condition and level of functioning.

Video brochures can be very helpful in claims where liability is at issue. Video footage of the accident scene or computer animations of the manner in which the accident occurred can conclusively establish the Defendant's negligence. It can also be used to refute Defendant's contentions of how the accident occurred.

Claims involving TBI have come under much closer scrutiny by liability insurance carriers because claims of mild brain injury have become more common in recent years and because settlement demands have increased as Plaintiff's attorneys have become more knowledgeable about the long term effects of brain injury. Mild TBI claims remain extremely difficult to settle. In many instances, insurers treat claims of mild brain injury with the same level of skepticism that they treat soft tissue injury claims. "If you can't see it or show it by an objective test, then it does not exist." Therefore, the attorney must be prepared to clearly establish that the Plaintiff has suffered a physical injury to the brain and that the claim involves more than a collection of subjective complaints that exist only in the mind of the Plaintiff.

The settlement brochure in whatever form should compare and contrast the client's level of functioning before and after the injury. It should clearly document how the injury has affected all facets of the Plaintiff's life. The following information should always be included:

1. Accident report;
2. Ambulance call report; All information contained in the ambulance call report which tends to document any period of unconsciousness should be clearly highlighted;
3. Initial ER records;
4. Complete copy of all hospital and medical records from any physician who has treated the client for any injury sustained in the accident. Hospital records should include operative reports, nursing notes, physician's orders, admission and discharge summaries, as well as physical therapy, occupational therapy and speech therapy notes and reports;
5. Reports of any abnormal diagnostic tests such as MRI's, CT scans, EEG's, etc.;
6. A detailed summary of the client's medical treatment;
7. The identity of all potential lay witnesses as well as a summary of each witnesses' testimony about the changes in behavior or functioning they have observed in the client;
8. The Curriculum Vitae and a brief summary of the experience of the neuropsychcologist or neuropsychiatrist who diagnosed the client's brain injury. If a vocational assessment has been made, information about the person who performed the vocational assessment should also be included.
9. Photographs of any obvious signs of trauma to the head, such as lacerations, bruising or swelling;\ocumentation of any lost earnings or lost earning capacity;
10. An analysis of lost future earning capacity and report by an economist setting forth the present value of any such loss in future earning capacity;
11. Grade transcripts, and results of standardized tests such as CAT, SAT or IQ testing from any educational institutions attended by the client both prior to and after the injury;
12. Military service records;
13. Employee records or personnel files;
14. Any other information which can be used to compare and contrast the client's medical condition, cognitive functioning and performance in life, before and after injury;
15. Detailed analysis of damages; and
16. A credible settlement demand.

Other items which may be included in the settlement brochure include:

1. Photographs of the vehicles involved or the accident scene;
2. Curriculum Vitae and summary of anticipated testimony of expert witnesses if case is not settled;
3. Curriculum Vitae and list of results obtained in other similar cases by Plaintiff's counsel;
4. "Day in the Life" film;
5. Photographs of the Plaintiff in various activities before and after the injury. Try to humanize the Plaintiff as much as possible in the manner in which the case is presented. Photographs of the Plaintiff in everyday situations helps put a "face" on the file for the adjuster.
6. Abstracts or other medical literature about acquired brain injury. I typically include a series of articles that I have collected over the years about the biomechanics, diagnosis and effects of brain injury so that the adjuster can conduct their own "research" to verify that the symptoms the Plaintiff is experiencing are indeed the result of a brain injury.
7. Portions of selected jury instructions, particularly the damage instructions. I then use the jury instructions as an outline to summarize each element of damages recoverable by the client.

I find that it is very effective to separately itemize each element of special damages in the brochure. I also list each type of general damages separately. Keep in mind that a brain injury will affect the Plaintiff in varying degrees as they age and move through the different stages of life. This is particularly true for persons that suffer brain injury at a young age. Therefore, just as the amount of medical care needed will change over the years, the amount of the Plaintiff's general damages will vary from year to year as they grow older.

One effective technique for summarizing damages in a brain injury case is to use a per diem amount for each type of general damage. That is the way the Plaintiff must live with their injury--hour by hour, day by day and year by year. The daily or hourly amount is changed based on the impact the injury would have on the Plaintiff at each stage in their life. This is known as the "segmental approach." The following is an example of a segmental analysis of the long-term effects of brain injury in a case involving a four year old child:

A "Lifetime General Damages Analysis" can then be prepared by adding up the damages for each segment. The concept is similar to a life care plan for future medical expenses. In this way it is easy to demonstrate the enormous impact that a traumatic brain injury has on an individual.

Settling a case does not have to be a sign of weakness or a sign that the attorney is afraid of trial. A fair, reasonable settlement before trial serves the client's best interest. Settlement brochures provide a terrific opportunity to demonstrate the attorney's knowledge, expertise and preparation to the insurance carrier while at the same time maximizing the potential recovery in the case. There is little doubt that the best way to obtain fair settlement of a claim is to prepare for trial. A well prepared brochure that carefully documents the Plaintiff's injuries and damages will not only aid in settlement, it will also provide a solid foundation for trial preparation in the event the case can not be settled.